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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 05-1849

JASON SELIGMAN,
Plaintiff - Appellant,
versus
DAVID I. TENZER; GLENN, FELDMANN, DARBY &
GOODLATTE, PC; dba GLENN, FELDMANN, DARBY &
GOODLATTE,
Defendants - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (CA-04-44)

Submitted:

March 21, 2006

Decided:

March 31, 2006

Before WILLIAMS, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Neal L. Walters, SCOTT/KRONER, P.L.C., Charlottesville, Virginia,


for Appellant. Paul G. Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.


See Local Rule 36(c).

PER CURIAM:
This appeal arises from a corporate governance dispute in
which Mason Cass and Bryant Cass, principals of the corporation,
Adventis, Inc. (Adventis), ousted the third principal, Jason
Seligman. Disgruntled with his termination from Adventis, Seligman
first filed suit in Virginia state court against the Casses and
Adventis

and

settled

the

dispute.

Seligman

then

filed

this

diversity malpractice action against David I. Tenzer and the law


firm,

Glenn,

Feldmann,

Darby

&

Goodlatte,

P.C.

(GFDG)

(collectively, defendants), who had drafted the papers necessary


to incorporate Adventis.

The district court granted defendants

motion for summary judgment and denied Seligmans motion for


voluntary dismissal or a continuance.

We now affirm.

I.
In 1999, the Casses invited Seligman to join their preexisting partnership, which advertised the sale of used cars over
the Internet.

Shortly thereafter, the three men dissolved the

partnership and formed a new entity, Independent Systems, LLC


(LLC).

In early 2002, the LLCs accountant advised the three

principals to reincorporate the LLC as an S-type corporation, so


that they could avoid self-employment taxes.
Consequently,
conversion.

Seligman

contacted

Tenzer

to

discuss

the

The parties agreed to reincorporate the LLC as an S-

type corporation under a new name, Adventis, and to consider


themselves employees, rather than members, of Adventis.

Seligman

alleges that, despite these changes, the three principals sought to


preserve the unanimity rule, which had governed their relationship
under the LLC.
At a meeting held on March 29, 2002, Tenzer told Seligman and
the Casses that the corporation could not function by the unanimity
rule and urged them to adopt a majority rule of decisionmaking.
Although

Tenzer

further

encouraged

the

principals

to

adopt

immediately the drafted shareholder and employment agreements, the


principals directed him to complete the conversion by March 31,
2002 and to defer the remaining agreements.

However, Seligman and

the Casses orally agreed that two of the principals could terminate
the third, but only for cause.
Immediately after the conversion, the principals suffered a
falling out, and the Casses fired Seligman. Seligman filed suit in
Virginia state court against the Casses and Adventis, asserting
state law claims of oppression, breach of fiduciary duty, fraud,
and mismanagement of corporate assets.

On March 26, 2003, the

parties executed a settlement agreement, under which Seligman


received, among other things: (1) a yearly compensation package
that included $120,000 in salary, full health benefits, and car
allowance for five years; and (2) a one-time $100,000 dividend

payment.

Although Seligman retained a one-third ownership in

Adventiss stock, he did not regain a managerial role in Adventis.


In

January

of

2004,

Seligman

filed

the

instant

legal

malpractice action in Virginia state court against defendants,


alleging

that

defendants

failure

to

protect

him

during

the

conversion caused his diminished bargaining power within Adventis.


Defendants removed the action to federal district court and moved
for summary judgment after extensive discovery. In connection with
his opposition to defendants motion, Seligman filed a motion to
continue the trial date, which was denied.

Seligman then moved to

dismiss his complaint without prejudice, or alternatively, for


reconsideration of his original motion for a continuance.

The

district court granted defendants motion for summary judgment and


denied both of Seligmans motions.

II.
A.
We first review de novo the district courts decision to grant
defendants motion for summary judgment.

Bouchat v. Baltimore

Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003).
According to Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate where the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, . . . show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment


as a matter of law.

Fed. R. Civ. P. 56(c).

Although we view the

facts and inferences drawn therefrom in the light most favorable to


Seligman, the non-moving party, he nevertheless has the ultimate
burden of demonstrating a genuine issue of material fact for trial.
See

Celotex

Corp.

v.

Catrett,

477

U.S.

317,

322-23

(1986);

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.
2002).
To state a cause of action for legal malpractice under
Virginia law, the plaintiff must show (1) the existence of an
attorney-client relationship giving rise to a duty; (2) the breach
of that duty by the attorney; and (3) damages proximately caused by
the breach.

Rutter v. Jones, Blechman, Woltz & Kelly, P.C., 568

S.E.2d 693, 695 (Va. 2002).

Setting aside the issues of whether

Seligman established an attorney-client relationship and breaches


arising thereunder, we find that Seligman failed to meet his burden
with respect to damages.

Seligman already received compensation

for his claimed injury--i.e., diminished bargaining power within


Adventis, the new corporation, following his termination--from the
Casses and Adventis in a prior lawsuit.

Because Seligman made no

distinction between the damages caused by the Casses decision to


fire him and the damages caused by defendants alleged legal
malpractice, we conclude that he suffered a single, indivisible
injury, for which he had one cause of action.

Cox v. Geary, 624

S.E.2d

16,

20

(Va.

2006)

(the

plaintiff

suffers

single,

indivisible injury where he fails to distinguish between damages


arising from separate and independent acts of negligence); Dwyer v.
Yurgaitis, 294 S.E.2d 792, 794 (Va. 1982) (although the plaintiff
sustained injuries in two separate collisions, she suffered a
single, indivisible injury because she failed to segregate the
damages).

Thus, having received compensation for all of the

damages related to his termination, Seligman is precluded from


seeking further recovery from defendants.

Cox, 624 S.E.2d at 19

(It is a generally recognized principle that there can be only one


recovery of damages for a single wrong or injury.);

id. at 23

(the plaintiff, who had been wrongfully imprisoned, could not


attain further relief from the attorneys defending him in the
criminal proceedings based on legal malpractice claims, where he
had already recovered damages related to his wrongful imprisonment
from the Commonwealth).

Accordingly, we affirm the district

courts decision to grant summary judgment to defendants.

B.
We

next

review

the

district

courts

decision

to

deny

Seligmans motion for voluntary dismissal of the action pursuant to


Fed. R. Civ. P. 41(a)(2) or a continuance pursuant to Fed. R. Civ.
P. 7 under the abuse of discretion standard.

Ellett Bros., Inc. v.

United States Fid. & Guar. Co., 275 F.3d 384, 388 (4th Cir. 2001);

United States v. Speed, 53 F.3d 643, 644 (4th Cir. 1995).

Seligman

filed the motions for voluntary dismissal or a continuance after


the close of discovery, after defendants had already filed their
motion

for

summary

judgment,

and

within

three

weeks

of

the

scheduled trial date. Given the advanced stage of the proceedings,


we perceive no error in the district courts decision to deny
Seligmans efforts to prolong the litigation.

See Paturzo v. Home

Life Ins. Co., 503 F.2d 333, 335 (4th Cir. 1974) (no abuse of
discretion in denying motion for voluntary dismissal in light of
the advanced stage of litigation).

Accordingly, we affirm the

district courts denial of the motions.

III.
The district courts dispositions of the motion for summary
judgment and the motion for a voluntary dismissal or continuance
are therefore affirmed.
AFFIRMED

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